MEMORANDUM.
The prosecution appeals by delayed leave granted from the circuit court?s order
dismissing a count of operating a motor vehicle while under the influence of a controlled
substance (OUIL), MCL 257.625(1), against defendant. We affirm, but on alternative grounds.
Defendant filed a motion with the circuit court to dismiss his OUIL charge on the ground
that the police retained possession of a blood sample taken from him for too long and that he was
therefore unable to timely arrange for his own blood-alcohol test. See MCL 257.625a(6)(d).
The circuit court agreed with defendant and dismissed the OUIL charge. The case was then sent
to the district court for adjudication of the sole remaining charge, a misdemeanor charge of
driving on a suspended or revoked license. MCL 257.904(3)(a). Defendant pleaded guilty in the
district court, partly in reliance on the prosecution?s agreement not to continue to prosecute the
OUIL charge, and was sentenced to pay a fine and serve three days? incarceration in jail.
The prosecution nonetheless obtained leave to appeal the circuit court?s initial decision to
dismiss the OUIL charge, and resisted defendant?s motion to dismiss the appeal after leave was
granted.
Defendant has shown to our satisfaction that the prosecuting attorney signed a motion
and order of nolle prosequi in connection with the OUIL charge, attendant to the plea agreement
under which defendant was convicted and sentenced in connection with the remaining charge.
?[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so
that it can be said to be part of the inducement or consideration, such promise must be fulfilled.?
Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971). Given

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defendant?s unchallenged account of having served a sentence pursuant to a plea arrangement, to
which the prosecutor agreed, which confirmed that count I, or the OUIL charge, would be
dropped, and the prosecution?s failure to address this issue on its merits,1 we hereby affirm the
circuit court?s initial decision to drop the OUIL charge on the alternative ground that the
prosecution waived objections by agreeing to the subsequent plea arrangement.
Affirmed.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Jessica R. Cooper

1 The prosecution?s argument in this regard consists of pointing out that this Court granted leave
to appeal limited to the merits of the circuit court?s decision to dismiss the OUIL count against
defendant, and argues that defendant?s procedural arguments against disturbing the result below
are thus not before this Court. However, this Court?s decision to grant leave for a single issue
was a limitation on the prosecution?s right to prosecute the appeal, not on defendant?s right to
argue alternative grounds for affirmance. Moreover, when this Court denied defendant?s motion
to dismiss, predicated on those procedural grounds, it did so ?without prejudice to presenting the
issue raised in the motion to dismiss before the case call panel.?